Brown v Donegal County Council

CourtSupreme Court
Judgment Date01 January 1980
Neutral Citation1978 WJSC-SC 810
Docket Number[S.C. No. 5 of 1976]
Date01 January 1980

1978 WJSC-SC 810

O'Higgins C.J.

Henchy J.

Griffin J.

Kenny J.

Parke J.



JUDGMENT delivered the 9th day of February 1979by O'HIGGINS C.J.


I have had the opportunity of reading the Judgment about to be delivered by Mr. Justice Henchy. For the reasons about to be stated by him I agree, that in so far as this case raises the question as to whether the malicious act complained of occurred within the judicial County of Donegal it should be answered in the negative. I have, however, come to the conclusion that this answer does not necessarily result in the second question raised in the Case being also answered in thenegative.


A brief look at the history of what is now commonly known as the Malicious Injury Code may be helpful. Compensation for such malicious or criminal injuries was first introduced in this county by the Grand Juries (Ireland) Act 1836. This Act provided a means whereby those injured by a malicious act could recover compensationby means of local taxation raised by a County or Grand Jury Cess. The statute was an elaborate one which dealt with all kinds of public works required to be performed in each County and which provided for the means whereby proposals for such works should be examined and the expense of the same raised by this County Cess or Grand Jury rate. The scheme of the statute was to provide for a preliminary examination of all such proposals for public works at a meeting of Justices of the Peace and of designated cess payers in each County. Such a meeting was called a "presentment sessions". All approved proposals or presentments went forward to a Grand Jury for the County which was empanelled at the next assizes for the County. These proposals were there considered and either approved, modified or rejected before the criminal business of the assizes was embarked upon. Section 135 of the Act provided that all claims for compensation in respect of those criminal injuries which came within the Section should, first of all, come before a presentment sessions in the County in which the malicious injury had been committed. Thepresentment sessions then gave its opinion on the merits of the application, which application was then forwarded to the Grand Jury for consideration. The Grand Jury was empowered either to disallow such application altogether, or, to present such sum or sums of money as the applicant ought to receive, to be levied off the County at large, or such sub-denomination thereof, as the Grand Jury should direct. Any cess payer could oppose such a presentation. If a payer did so, or, if an application for compensation was refused by the Grand Jury and the applicant for compensation wished to have it further considered, then the Judge of the Assizes would empanel a jury to decide the issue. The result was that all contested applications for compensation were ultimately decided by the Judge of the Assizes, sitting with a jury, and the verdicts of such juries were by the statute made final andconclusive.


This, stated very generally, was the machinery which applied to the pursuing of claims for criminal injuries up to the passing of the Local Government (Ireland) Act 1898.Section 135 in so far as it applied to property which was not on dry land, only applied to "any boat or barge laden with corn or otherprovisions".


Prior to the passing of the Local Government (Ireland) Act 1898 some changes were effected by the Compensation Code which required to be noted. By the Malicious Injuries (Ireland) Act 1853 the Code was extended so as to apply "if any person in Ireland unlawfully, riotously, or tumultuously assembled together shall thereafter unlawfully, wantonly, or maliciously destroy or demolish or partially destroy or demolish or otherwise damage or injure, any dwellinghouse, outhouse, warehouse, shop, or building, or any furniture, goods, chattels, or property therein, or any goods, chattels, or property, or any growing crop, produce, or article of any person or persons, whereversituate".


And the Act provided that such compensation could be recovered in all respects in the manner provided for by the Grand Jury (Ireland) Act1836.


The Merchant Shipping Act 1894 also provided for anextension and this extension becomes material in this Case. By Section 515 of the Merchant Shipping Act 1894 it is provided as follows:

"Where a vessel is wrecked, stranded, or in distress as aforesaid, and the vessel or any part of the cargo and apparel thereof is plundered, damaged, or destroyed by any persons riotously and tumultuously assembled together, whether on shore or afloat, compensation shall be payable to the owner of the vessel, cargo orapparel;In England in the same manner, by the same authority, and out of the same rate as if the plundering, damage, injury or destruction were an injury, stealing, or destruction in respect of which compensation is payable under the provisions of the Riot (Damages) Act 1886, and in the case of the vessel, cargo or apparel not being in any police district, as if the plundering, damage, injury, or destruction took place in the nearest police district; In Scotland by the inhabitants of the county, city, or borough in or nearest to which such offence is committed, in manner provided by the Riot Act, with respect to prosecutions for repairing the damage of any churches and other buildings, or as near thereto as circumstances permit, andIn Ireland, in manner provided by the Act of the Session held in the sixteenth and seventeenth year of the reign of her present Majesty, chapter 38, intituled "An Act to extend the Remedies for the Compensation of Malicious Injuries to Property in Ireland" with respect to damage to any dwellinghouse or other property thereinmentioned".


The Statute referred to in relation to Ireland, was the Malicious Damage Act of 1853.


This Section of the Merchant Shipping Act only applied where the damage was done by "persons riotously and tumultuously assembled together". It is to be noted, however, that it applied to wrecked and stranded vessels, whether on shore or afloat and also to vessels "in distress". The expression "in distress", by reference back to the earlier Section 511 applies to a vessel so in distress "at any place on or near the coasts of the United Kingdom or any tidal water within the limits of the United Kingdom". The Section expressly provided, in so far as Ireland was concerned, that compensation was to be made "in manner provided by" the Malicious Injuries (Ireland) Act 1853 "with respect to damage to any dwellinghouse or otherproperty therein mentioned". The manner provided by the 1853 Act was the manner provided for the Grand Jury Act of 1836. This in effect meant that one had regard to the place where the dwellinghouse or other property was situate and a claim was made to the presentment session for the County in which that place was situate. The significance of this Section of the Merchant Shipping cut was that it provided for the recovery of compensation in respect of damage actually caused outside the County or district by means of machinery hitherto only used in respect of damage caused inside the County or district. It did this in respect of England by regarding such damage as taking place "in the nearest police district". It did so, in relation to Scotland, by making the inhabitants of the County, city or borough "nearest to which such offence was committed" liable. In its reference to Ireland the Section, however, merely provides for the machinery for making compensation payable and it does no more. In relation to this, Mr. Keane on behalf of the County Council, submitted that as this machinery only covered cases of damage occurring within theCountythe compensation provided for by the Section could not be recovered in Ireland. This, if so, would be a very strange result. It would mean that compensation decreed by the Section as payable could not be recovered because of a difficulty in adapting a procedure which the Section itself expressly directed to be used. I would have great difficulty in accepting such a contention. It seems to me, however, that this problem, if problem there be, is resolved by the express terms of Section 685 of the Act. This Section provides as follows:


2 "(1) Where any district within which any court, justice of the peace, or other magistrate, has jurisdiction either under this Act or under any other Act or at common law for any purpose whatever is situate on the coast of any sea, or abutting on or projecting into any bay, channel, lake, river, or other navigable water, every such court, justice, or magistrate, shall have jurisdiction over any vessel being on, or lying or passing off, that coast, or being in or near that bay, channel, lake, river, or navigable water, and over all persons on board that vessel or for the time being belonging thereto, in the same manner as if the vessel or persons were within the limits of theoriginaljurisdiction of the court, justice or magistrate.


(2) The jurisdiction under this section shall be in addition to and not in derogation of any jurisdiction of power of a court under the Summary Jurisdiction Acts."


What is the effect of this Section? Notwithstanding that each Section of a Statute is a substantive enactment the Statute itself must, as I understand the law, be read and construed as a whole, regard being had to its purpose or to "its cause and necessity" (See the speech of Lord Wrensbury in Rhonnda's Claim 1922 A.C.339 at p.397). This is in order that the language as a whole may be read as being consistent. Here is a Section which deals with Courts having jurisdiction in districts situate on the coast of the sea or navigable waters. It extends the jurisdiction of such Courts "over any vessel" lying or passing off such coasts as if such vessel were "within the...

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